At the law school, now that we're easing back into being at work in person that colloquium committee thought it would be a good idea to have a series of talks in which several members of the faculty introduced themselves by describing how we got into law teaching and saying a few words about our teaching and scholarship.
I was very pleased to be asked to speak at yesterday's session. So there are my notes.
I went to college in 1976 as a pre-med. In the summers after my sophomore and junior years, however, I worked in a pathology lab. I quickly discovered I didn't like being around dead people. I didn't like being around sick people. And I found bodily fluids icky. This seemed incompatible with a career in medicine. But by then I was locked into a Chemistry major.
So in 1980, I enrolled in Chemistry grad school. After a series of laboratory accidents that were not entirely my fault, my research advisor suggested I bail out with an M.S. and seek a job that did not involve dangerous substances and extremely valuable equipment.
So in 1982, I enrolled at UVA Law.
My plan, as I explained to my somewhat dubious parents, was to pursue a career in patent law where I could put my science training to good use. But then I met Mike Dooley.
In the summer after my first year, I was Mike’s RA.
I thought Mike had the coolest job in the world. People actually paid him to sit around thinking great thoughts about those fascinating things called corporations.
Admittedly, it was an odd trigger for a transformative experience, but that’s exactly what I had that summer. By the time the fall semester rolled around, I wanted to be a corporate lawyer. More precisely, I wanted to be a corporate law academic.
After a few years in practice, I got hired at UIUC law (where Mike Dooley had started). In 1996, I joined the UCLAW faculty.
As a scholar, I’ve made two primary contributions to the literature. I was one of the first people who argued that insider trading is not really a securities law issue. But rather an issue about who owns information. I developed an approach to insider trading that was designed to protect corporate rights in information, which I still believe better explains some aspects of the law and makes more sense than our fraud-based system.
Then I developed a model of corporate governance that I called director primacy, to contrast it to the prevailing shareholder primacy model. The model built on work Mike had done, which in turn had built on work economist Kenneth Arrow had done. It’s probably what I’m best known for. The gist is that there is an inherent tradeoff in corporate law between deference to the board’s authority and the need to hold the board accountable. Because the power to review is the power to decide, authority and accountability are ultimately inconsistent. This tension drives and explains much if not most of corporate law.
One thing I learned early on was that you need to keep banging away on an idea. After my fourth article on insider trading, Mike Dooley told me that what the world did not need was another article on insider trading by yours truly. Since then I’ve written a book on insider trading, two book chapters, and three more articles. I like to think all make contributions, as do the dozen or so articles and three books I’ve written about aspects of director primacy, but as the saying goes, quantity has a quality of its own.
As for teaching, I think legal education pervasively sends law students the message that corporate lawyering is a less moral and socially desirable career path than so-called “public interest” lawyering. The corporate world is viewed as essentially corrupting and alienating, while true self-actualization is possible only in a Legal Aid office.
In my teaching, I have chosen to unabashedly embrace a competing view. I tell my students about Nicholas Murray Butler, president of Columbia University and winner of the Nobel Peace Prize, who wrote in 1912 that: “The limited liability corporation is the greatest single discovery of modern times. Even steam and electricity are less important than the limited liability company.”
I tell them about journalists John Micklethwait and Adrian Wooldridge, whose magnificent history of the corporation contends that the corporation is “the basis of the prosperity of the West and the best hope for the future of the rest of the world.”
And so I put it to my students this way: You want to help make society a better place? You want to eliminate poverty? Become a corporate lawyer. Help businesses grow, so that they can create jobs and provide goods and services that make people’s lives better.
The goal isn’t just to make my students feel better about themselves. I firmly believe that too many of our students, when they get out in practice, may be more willing to act in ways that are ethically gray—to act as facilitators rather than gatekeepers—if they’ve been told repeatedly that they’ve already “sold out.”
Also, I don’t use the Socratic method but that’s a story for another day.
